Elisa Bertolini
(Bocconi University, Milano - Italy)
Japan: the Linguistic Transition as a Condition for the Introduction of a Western Legal
System
Between 1868 and the end of the 19th Century, Japan transformed its feudal system, founded
on traditional rules, into a constitutional legal system based on the rule of law. In the process, the
Oligarchs (the holders of the political power) studied the constitutions and codes of the United
States and the major European countries (Germany, Great Britain, Switzerland, France,
Netherlands, Italy). They therefore took into account both common and civil law systems. As a
result, Japan adopted a Constitution in 1889 (based on the 1850 Prussian one); in 1896, it adopted
the civil code, which was highly influenced by the German BGB; in 1899, it adopted the
commercial code and in 1907 the criminal code.
The article underlines that such a transition towards a Western type of legal system would
not have been possible without a linguistic transition. In fact, some key concepts of Western
constitutionalism and legal theory did not have any correspondent in the Japanese language.
It was therefore necessary to coin new words in Japanese to express these new legal
concepts. The most emblematic example is the Japanese word that translates “rights”.
Mitsukuri Rinshō, one of the mainr experts of Western legal systems and the translator of
the French codes, coined a new word by combining different kanji (ideogram). He created the word
kenri by combining the kanji of ken (権), which means “authority”, with the one of ri (利), meaning
“profit, interest, advantage”. The translation by Rinshō gave raise to a huge debate about which
kanji had to be used in order to create the new word. Other scholars and philosophers, like
Fukuzawa Yukichi, proposed another combination of kanji: he changed the kanji ri (利), which
means “profit”, with ri (理), meaning “reason, justice, truth”. The result was still the word kenri but
as a result of a different combination.
Notwithstanding the introduction of a word expressing the Western concept of “rights”,
Japanese establishment and public opinion are still in the process of acquainting with the intrinsic
meaning of the new word. This is probably also due to a legal culture that traditionally recognized
only duties, but not rights.